The Supreme Court of the United States has said of joint and several liabilities of a number of promisors: "If the plaintiff obtains a joint judgment, he cannot afterwards sue them separately, for the reason that the contract or bond is merged in the judgment; nor can he maintain a joint action after he has recovered judgment against one of the parties in a separate action, as the prior judgment is a waiver of his right to pursue a joint remedy." 26 And this expresses the law as generally understood, though the final words of the quotation "is a waiver of his right to pursue a joint remedy" might better be "is a merger of his claim against that party, and is, therefore, inconsistent with the continuance of a joint right against all."27 It is true that a single Justice of the English Supreme Court of Judicature,28 has said: "Is the separate cause of action merged in the joint judgment? Take the illustration of a joint and several note against A, 6, and C, which is usually comprised in one document. The result is the same as if three separate notes were given as well as the joint note. If A is sued to judgment on his separate note, is the joint note of A, B, and C, merged in the judgment? On principle, why should it be? The object of taking a joint and several note is to have the separate liability of each promisor as well as the joint liability of all, and why should the fact that the separate liability of one promisor has merged in a separate judgment against him prove a bar to an action on the joint note?" And there are a few early federal decisions to the same effect.29 The quotation above from the decision of the United States Supreme Court seems the better statement. The question involved is - can two judgments be given against the same debtor for the same debt? and it seems that the answer should be in the negative even though the debtor is bound by separate contracts for the debt. It has even been held that the beginning of a joint action or a several action could be pleaded in abatement to a subsequent action for the same cause in which a party defendant in the earlier action was again made a party defendant, whether jointly with others or not.30 But the mere beginning of an action does not merge the cause of action, and the very purpose of a joint and several contract seems necessarily to involve the allowance of concurrent remedies against each of the parties severally and against all of them jointly.31 Therefore even judgment against one or more defendants on their joint obligation does not bar a subsequent action against one who though jointly and severally bound with the defendants in the first action did not have judgment rendered against him in that action.32 As there is but a single debt, though several are bound to pay it, satisfaction of the debt or of a judgment against one for it, necessarily discharges all.33

22Code (1904), Sec.Sec.2856, 2867.

23 Remington's Codes (1915), Sec. 436.

24 Stat. (1916), Sec.Sec. 2796-2799, 2806, 3818, 4204, 4205. 25 Code (1914), Sec. 4372.

26 Sessions v. Johnson, 96 U. S. 347, 348, 24 L. Ed. 596, quoted in United States v. Ames, 99 U. S. 35, 26 L. Ed. 295.

27 United States v. Price, 9 How. 83, 13 L. Ed. 66; Steams v. Aguirre, 6 Cal. 176; Bangor Bank v. Treat, 6 Greenl. 207; Stoner v. Stroman, v Watte & S. 86; Clinton Bank v. Hart, 5 Ohio St. 33; Greer v. Miller, 2 Overt. 187. See also per Bayley, B., Leohroere v. Fletcher, 1 C. & M. 623, 634; Taylor v.

Bartorious, 130 Mo. App. 23,108 S. W. 1080.

28 Cave, J. in, Be Davison, 13 Q. B. D. 50, 53, 64.

29 United States v. Cushman, 2 Sumn. 426; Trafton v. United States, 3 Story, 646; Sheehy v. Mandeville, 6 Cranch, 253, 3 L. Ed. 391.

30 Ex parte Rowlandson, 3 P. Wms 408; Stearns v. Aguirre, 6 Cal. 176,181.

Sec. 336. A covenant not to sue, or a qualified release of a joint or a joint and several obligor does not discharge the others. A covenant not to sue a debtor or to forbear perpetually has from early times been held a bar to the original cause of action.34 This is to avoid circuity of action; for, if the plaintiff in the original action should recover, the defendant could recover precisely the same damages back for breach of the covenant to forbear or not to sue. Instead of permitting the double action, the court produces the same effect more simply by giving judgment for the defendant in the original action. But in case of a covenant not to sue one of two or more joint debtors the intention of the parties can be attained only by enforcing in terms both the original promise and the later covenant. For if in an action for the debt the covenantee had judgment, it would also discharge his co-debtors - a result not contemplated by the parties. But if the covenant is enforced in terms the obligee retains his right of action at law against all the joint debtors, becoming liable in turn to the one whom the covenant to forbear or not to sue was given for any damage which the latter may suffer by the breach of covenant. If any judgment obtained against the joint debtors is not satisfied out of the property of the covenantee, such damages can only be nominal. Accordingly such a covenant given to one joint obligor does not have the effect of a release and the debt is not discharged.35 The same effect is given to a release by the creditor which contains an express reservation of his rights against the other joint debtors.36

31This mi so held in People v. Harrison, 82 111. 84; Turner v. Whit-more, 63 Me. S26; Ward v. Johnson, 13 Mass. 148, 151; Clinton Bank v. Hart, 5 Oh. St 33.

32 Kirkpatrick v. Stingley, 2 Ind. 273; Sherman v. Christy, 17 Ia. 322; Sayre v. Coleman, 9 Dana. 173,174. See also Palmer v. Gallup, 16 Conn. 555, 566. These decisions justify the criticism supra in this section of the language quoted from Sessions v. Johnson, 95 U. S. 347, 348, 24 L. Ed. 596. In McKinley v. Small, 178 Mich. 555, 146 N. W. 230, it was held that where the holder of joint and several notes elected to sue all the obligors, but was prevented by the death of one from recovering against all of them, the obligation was not so merged in the allowance made by the decedent's estate as to estop him from continuing a suit against the other obligors.

33 Fryer v. Gildridge, Hob. 10; Cook v. Field, 3 Ala. 53, 36 Am. Dec. 436; Jameson v. Barber, 56 Wis. 630, 14 N. W. 859.

34 Hodges v. Smith, Cro. Eliz. 623; Smith v. Mapleback, 1 T. R. 441, 446; Ford v. Beech, 11 Q. B. 862; Flinn p. Carter, 59 Ala. 364; Jones v. Quinni-piack Bank, 29 Conn. 25; Guard v. Whiteside, 13 11l. 7; Peddicord v. Hill, 4 T. B. Mon. 370; Foster v. Purdy, 5 Met. 442; Matheeon v. O'Kane, 211 Mass. 91, 95, 97 N. E. 638, 39 L. R. A. (N. S.) 475; Stebbins v. Niles, 25 Miss. 267; Line v. Nelson, 38 N. J. L. 358; Phelps v. Johnson, 8 Johns. 54; Thurston v. James, 6 R. 1.103.

In fact such an instrument is in terms contradictory. If it is to be regarded as a true release of one joint debtor, it would be legally impossible to reserve rights against the others, for their obligations could not continue to exist without all being bound.37 In order to give effect to the manifest intention of the parties as nearly as possible, the courts have therefore held that a release with such a reservation is in legal effect no release at all, but merely a covenant not to sue.38 So in the case of joint and several liabilities, if the creditor while discharging the several liability expressly reserves the joint right, it is not discharged.39 Likewise, the joint liability may be released with a reservation of the several right.40 A right against other debtors is held to be reserved in any case where it appears from the terms of the release that it was not intended or expected that all the debtors should be released.41 Parol evidence, however, to show an intent to reserve rights against other joint obligors has been held inadmissible; 42 though if all the parties assent, and the rule locally in force in regard to varying a sealed instrument by matter in pais does not prevent,43 a new agreement, in effect a novation, may be made, by which one obligor in consideration of a payment by him, is discharged and the others remain liable.44 If an agreement not to sue is not under seal, or if the effect of seals at common law has been abolished 44a questions may arise as to the sufficiency of the consideration for any promise to release or to forbear perpetually to sue a debtor either because the promise was made in consideration of the payment of part of a debt, for the whole of which he was liable, or for other reasons, but these questions have been considered under the subject of consideration.

35 Fitzgerald v. Trout, 11 Mod. 264; Lacy v. Kinnaston, Holt, 178; s. c. 1 Ld. Raym. 688; s. c. 2 8alk. 575; s. c.

3 Salk. 298; s. c. 12 Mod. 548; Dean v. Newhall, 8 T. R. 168; Hutton v. Eyre, 6 Taunt. 289; Duck v. Mayeu, [1892] 2 Q. B. 511, 513; Garaett v. Macon, 2 Brock. (U. S.) 185, 220; Roberta v. Strang, 38 Ala. 566, 82 Am. Deo. 729; Kendrick v. O'Neil, 48 Ga. 631; Haney & Campbell Mfg. Co. v. Adaza Creamery Co., 108 Ia. 313, 79 N. W. 79; Lane p. Owinge, 3 Bibb (Ky.), 247; Mason v. Jouett'a Admr., 2 Dana, 107; McLellan v. Cumberland Bank, 24 Me. 566; Bradford v. Prescott, 85 Me. 482, 487, 27 Atl. 461; Shed v. Pierce, 17 Man. 623; Matheson v. O'Kane, 211 Mass. 91, 96, 97 N. E. 638, 39 L. R. A. (N. S.) 476; Durell v. Wendell, 8 N. H. 369; Benton v. Mullen, 61 N. H. 125; Rowley v. Stoddard, 7 Johns. (N. Y.) 207; Catakil] Bank v. Messenger, 9 Cow. 37; Bank of Chenango v. Osgood,

4 Wend. 607: Couch v. Mills, 21 Wend.

(N. Y.) 424. See also in the following section many cases of covenants not to sue persons jointly and severally liable for a tort.

36Solly v. Forbes, 2 B. & B. 38; Thompson v. Lack, 3 C. B. 540, 651; Price v. Barker, 4 E. & B. 760; Bateson v. Gosling, L. R. 7 C. P. 9; Green v. Wynn, L. R. 7 Eq. 28, L. R, 4 Ch. 204; Berry v. Pullman Co., 249 Fed. 816, 162 C. C. A. 50; Northern Ins. Co. v. Potter, 63 Cal. 157; Parmelee v. Lawrence, 44 111. 405 (virtually overruling Rice v. Webster, 18 111. 331); Gardner v. Baker, 25 Ia. 343; Bradford v. Prescott, 86 Me. 482, 486, 27 Atl. 461; Dickinson v. Bank, .130 Mass. 132; Benton v. Mullen, 61 N. H. 125; Hubbell v. Carpenter, 5 N. Y. 171; Greenwald v. Kaster, 86 Pa. 45; Russell v. Adderton, 64 N. C. 417. But see Fox v. Hudson's Ex., 150 Ky. 115, 160 S. W. 49, ad fin, and cases of liability in tort infra, 5 338a, n.